Conference: Shakespeare and the Law

Shakespeare and the Lawa conference atThe University of Chicago Law School May 15th and 16th, 2009

This interdisciplinary conference will bring together thinkers from law, literature, and philosophy to investigate the legal dimensions of Shakespeare's plays. Participants will explore the ways in which the plays show awareness of law and legal regimes and comment on a variety of legal topics, ranging from general themes, such as mercy and the rule of law, to highly concrete legal issues of his time. Other papers will investigate the subsequent influence of his plays on the law and explore more general issues concerning the relationship between law and literature.

Organized by: Martha Nussbaum Judge Richard Posner Richard Strier

This conference is free and open to the public. No registration is required, but space may be limited. Questions may be addressed to shakespeare.conference@gmail.com

Schedule:

Friday, May 15th

10:00 Opening Remarks 10:15-12:15 Student Panel (Room V)

Patrick Barry

Marie Theresa O'Connor

Hanna Chung

Chair: Elizabeth Anker

12:15-1:15 Break 1:15-3:45 Context and Interpretation (Room V)

Kathy Eden

Richard Helmholz

Lorna Hutson

Constance Jordan

Chair: Randy Berlin

3:45-4 Break

4-5:15 Scenes from Hamlet,As You Like It and Measure for Measure (Courtroom)

Patrick Barry, “Shakespeare Re-writes One L: What the Bard Can Teach Us About the First Year of Law School”Professor David Strauss ended one of his Elements of Law classes this past fall term with the following observation: “Whenever you think you have come up with something interesting to say about law, it turns out Shakespeare said it first…and better.” My paper takes the spirit of Professor Strauss's comment and applies it to the first-year law student experience. “Whenever you think you have come up with something interesting to say about law school,” the reformulation might go, “it turns out Shakespeare said it first…and better.” It is offered, to some extent, as comic relief, though of a kind closer to the Fool in King Lear than the Porter in Macbeth. Probably more playful than “Criminal Responsibility in Shakespeare” and “Liquid Fortification and the Law in King Lear,” the piece is meant to be no less provocative, suggesting that various Shakespearean plays have more to teach us about life as a law student than any Princeton Review guide, memoir by Scott Turow, or movie starring Reese Witherspoon.

Hanna Chung“When the Law Gets It Wrong: Righting the World with Magic and Lawlessness”Most of the time, most laws work pretty well. A will makes future entitlements clear, saves families from unproductive in-fighting, and transfers the blame from bad divisions to the dead. Rigid marriage laws create contracts with the strength to bind unrelated houses for a long-term purpose, and the implied rules in sex roles regulate courtship into predictable courses of conduct. But when a generally reliable law fails to bring order to the particular circumstances of a few characters, good literature happens. In As You Like It and A Midsummer Night’s Dream, Shakespeare explores how some socially beneficial laws are maintained at the expense of the parties most affected by the immediate reach of the laws. This paper explores how Shakespeare problematizes the law of succession, marriage laws, and the social regulations that govern courtship and gender roles. It concludes with a suggestion on why Shakespeare resorts to exile and magic to solve what are essentially social problems and speculates on what Shakespeare’s use of those devices reveals to the audience about the limitations of law.

Marie Theresa O'Connor“Shakespeare’s British Citizens: Cymbeline and the Union”My paper focuses on Shakespeare’s engagement in Cymbeline with a contemporary controversy over the status of the “Post Nati” (English and Scots born after King James VI and I’s English accession). I will explore the implications of the equality or subordination of the Scottish Post Nati for what is “Britain.” In particular, the paper will closely examine Sir Edward Coke’s ruling in Calvin’s Case (1608).

Context and Interpretation Chair: Randy Berlin

Richard Helmholz, "Shakespeare and the Law of the Church" Much has been written about the place of the English common law in Shakespeare's plays, but not about his use -- if any -- of the Roman and canon laws. This paper will examine the evidence to see whether the Bard did in fact know the latter. After showing that he did, it will assess the extent and the nature of the use he made of it.

Kathy Eden, "Liquid Fortification and the Law in King Lear" Taking as its point of departure both the law's centrality to Stoic philosophy and the fundamentally Stoic world of the play, including its dramatic circumstances and characterization, my talk will explore how two terms in particular--"royalty" and "loyalty"--enforce the workings of this world.

Constance Jordan, "Interpreting Statute in Measure for Measure" In the Duke of Vienna’s absence his deputy Angelo interprets the words of the city’s strict statutes against prostitution and fornication literally, or in Plowden’s words in Eysten v. Studd, as “restrained,” rather than as “enlarged,” whether by extension, so that their meaning considers elements not included in the statute’s language specifically, or by restriction, so that their meaning omits elements included in that language. In sixteenth-century England, penal statutes were often “enlarged” in the interest of sparing the accused as much as the statute would allow, given the mischief it was intended to remedy. Angelo’s decision to interpret the Duke’s statute against fornication as “restrained” and to order Claudio’s execution is not unjust, although it is unusual, given contemporary English practice in criminal cases and also, more particularly, in light of the remedies offered by bastardy laws. Angelo’s literalism does, however, become self-reflexively interesting when he commits the very crime for which he has condemned Claudio, thus dramatizing the warning the play gives the magistrate: “Judge not,” etc. The authority of the absent Duke, absolute within his state, remains doubtful throughout the play, engaged as he is in discovering whom he can trust. His deceptions invoke Juvenal’s question: quis custodiet ipsos custodes (who shall guard the guardians). However, as suspect as the Duke’s motives and stratagems may be, his actions cannot be legally challenged. But he is exposed for the deceiver he is by reactions to the scurrilous language of the rogue Lucio, who thus figures (paradoxically) the guardian of guardians for whom the play has been looking from its beginning. The action of the play is self-reflexive throughout, a register of mirroring effects that asks the audience to assess the truth in “seeming.” Its continuous troping on images of a socially disruptive “liberty,” invoking as they do the name and character of the place where the play was first performed - the Liberty of Southwark - asks the audience to consider Claudio’s crime in a figurative sense and to pose this meta-critical question, that is, just how much liberty is too much liberty?

Lorna Hutson, "'Tis Probable and Palpable to Thinking': Law and Likelihood in Shakespeare"Nineteenth-century ‘character criticism’ of Shakespeare may not be vilified to the extent that it once was, but no-one gives it much credence. My paper, however, argues that such criticism, which insists on the plays’ conformity to novelistic conventions of time and duration, should be seen as a properly forensic or legalistic response to the implication of Renaissance drama (and Shakespeare in particular) to newly pervasive habits of evidential thinking in English legal culture. I begin by showing how, in Othello, the arguments of nineteenth-century critics over the evidence for when specific events were supposed to have taken place (the marriage of Desdemona and Othello, for example) arises from the fact that these events themselves are not staged, but are merely inferred from other characters’ sceptical, evidential inquiries into the likelihood of their having happened. I then link this revelation, by way of Barbara Shapiro’s work on the legal meaning of the word ‘fact’ in sixteenth-century England, to striking continuities between poetic and forensic uses of circumstantial rhetoric in the period. I show that the same rhetorical topics of circumstance used by humanist pedagogues to teach narrative composition and literary exegesis were also becoming staple elements in a popular vernacular literature on the judicial evaluation of evidence, aimed at justices and juries. I conclude by showing how it is the skilful use of these rhetorical topics of circumstance that leads us, in plays by Shakespeare and Jonson, to infer the time, place and manner of events which are never actually staged, and which, further, leads us and the dramatis personae themselves into imagining motivations and histories that explain these circumstances.

The Nature of Law Chair: Judge Sack

Tzachi Zamir, "The Fool, the Blind, and the Jew: Law and the Comic in The Merchant of Venice" The talk brings out the tension between morality and theatricalized morality. The latter process is suspiciously free from the limitations of the former, and the distance between these should inform our understanding regarding the relations between moral philosophy and literature. These points will emerge from a consideration of the subliminal connections between the use of fool humor in the Launcelot-Gobbo exchange (II.ii) and Shylock's trial in The Merchant of Venice.

Martha Nussbaum, “‘Romans, Countrymen, and Lovers’: Political Love and the Rule of Law in Julius Caesar” Julius Caesar shows us two different kinds of political love, in tragic opposition: the love of political institutions and the rule of law, and the love of individual political leaders. In the play, particular personal love, embodied by Antony, triumphs over Brutus' love of more abstract love of liberty and non-domination, because the hearts and minds of the people can only be swayed through appeal to particulars. Must this always be the case? (It was not precisely the case in ancient Rome, where Brutus' defeat was not due to an inability to move ordinary people's emotions.) I argue that the rule of law can, and must, be supported by emotions that are particularistic and not simply abstract. If these emotions are to support the rule of law rather than undermining it, however, they must be closely tied to good general principles. As evinced by both the American and the Indian struggles for independence, particularistic symbolism, when harnessed and used properly, can be a very effective tool for law and against tyranny.

Kenji Yoshino, ""The Reluctant Imperialist?: Empires of Law and Literature in The Tempest""Viewed by most to be Shakespeare's last solo play, The Tempest has historically been subject to two canonical interpretations. As Marjorie Garber puts it: "Shakespeare's powerful late romance The Tempest has been addressed by modern critics from two important perspectives: as a fable of art and creation, and as a colonialist allegory." Under the first perspective, Prospero speaks for Shakespeare as the artist and magus, speaking to renounce his art. Under the second perspective, the play articulates the nascent fascination with the idea of a British Empire, with Prospero as the white European colonizer and Caliban and Ariel as the colonized natives of the supposedly "uninhabited isle" on which the play is set.This paper argues that the two perspectives are not mutually exclusive. I agree with those who criticize the appropriation of The Tempest as a straightforward colonialist allegory. But I wish to argue that it is no accident that these themes come to fore in the Shakespeare's primary meditation on the role of literary art and creation. The real empire depicted in The Tempest is the empire of art and imagination. It is no longer true that "the sun never sets on the British empire," but it is increasingly true that the sun never sets on Shakespeare. To analyze the play, either internally or in its effects, solely according to the empire of law obscures the fact that the real empire it explores and establishes is an empire of literature.

Dan Brudney, "Two Differences between Literature and Law"The paper’s focus is on differences between literary and legal texts.The paper begins with a discussion of the role in Macbeth of the concept of legitimate rule as distinct from mere power.These remarks lead to the claim that what I call the “authority” of a literary text is a function of the specific arrangement of the text’s words while that of a legal text is a function of its pedigree.I then argue for a second difference between literary and legal texts, this time a difference in the phenomenology of interpretation.

Law Enforcement and Fairness Chair: Judge Easterbrook

David Bevington, "Equity in Measure for Measure" Focusing on Escalus's mediating role and way of handling the day to day of law enforcement. What to do about the likes of Pompey and Mistress Overdone and Froth Pragmatism and the law in relation to moral legislation.

Diane Wood, "Law, Disobedience, Justification and Mercy" The paper will discuss Shakespeare's treatment of laws that are not followed. Who disobeys laws? What is the content of those laws? When and how disobedience is justified, and when is it not? And finally, when is it clear disobedience? I will look primarily at Measure for Measure and Merchant of Venice, but will address other plays as appropriate.

Richard McAdams, "Criminal Responsibility in Shakespeare"The paper will address issues of criminal liability in Shakespeare, asking how a play illuminates legal issues and how the English criminal law of the period illuminates the play. A key example is Othello, where I discuss whether Iago would have been legally guilty of the murder of Desdemona.

Richard Strier, “Shakespeare's Problems with Law” The problem that I raise and meditate on in my paper is this: while there is no doubt that Shakespeare was able to imagine a great range of things, one of the things that he seemed consistently unable to imagine was a reasonably well-functioning legal system. What I try to show, in brief compass, is that in every instance in which Shakespeare seems to imagine such, and to give it the recognizable features of such, he also immediately raises issues which complicate, undermine, or call into question the value or possibility of such a thing. I focus primarily on the second part of Henry IV, a play that seems to be committed to one central feature of a properly functioning legal system: impartiality, the law applying equally to everyone within its jurisdiction. At the end of the paper, I point to problems with the law imagined in two other plays: Measure for Measure and Merchant of Venice.

Law, Commerce, Family Chair: Alison LaCroix

Richard Posner, "Law and Commerce in The Merchant of Venice"I first discuss the legal issues in the play from a rather narrow, technical standpoint, and then broaden the discussion to take up more general social themes involving equity, jurisprudence, and capitalism.

Elizabeth Emens, "Regulatory Fictions: On Marriage and Countermarriage"The debates over same-sex marriage in the public sphere have spurred theoretical debates over marriage in the academy. There is some academic debate about whether gay people’s relationships are worthy of marriage—usually at events staged by Federalist Society student chapters and sometimes drawing large crowds—but arguably the most robust scholarly debates have been about whether marriage is worthy of gay people (and thus of everyone). Specifically, pro-gay scholars have engaged in heated exchanges over whether marriage should be the political goal of LBGT and leftist thinkers. If this historical window between gay criminalization and legal domestication is going to be brief—which I admit that I increasingly hope, but don’t expect—then we should seize this rare opportunity to imagine a space beyond marriage and look in every direction for new ideas and possibilities. This essay therefore imagines a world beyond our current marriage regime by looking to some unusual sources: literature (especially Shakespeare) and anti-gay law. When trying to reimagine possibilities, what might seem more obvious than to look to literature? But we rarely consult literature as a source for new laws, and we rarely think of law as a prime site of the imagination. This inquiry yields a variety of images of what marriage law might be, and thus a toolkit for thinking about dimensions along which we might or might not regulate intimate relationships. The essay concludes with some reflections on the relation between law and literature in the project of innovation.

Bradin Cormack, "Grounding Shakespeare" My paper will take up Shakespeare's use of land law, and especially the concept of the heir, in the sonnets and in some of the English Histories.